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16.11.03

Retroactive Legislation

There have been a couple cases recently of what I'll call "retroactive legislation" with regard to the environment. That is, cases in which new, lower environmental standards were applied retroactively to violations committed when the standards were still higher, thus exonerating the violators. The one that's gotten the most press has been the EPA's decision to stop pursuing companies who violated air quality standards because the companies' actions wouldn't be violations of the newly implemented standards. Today Bill at The Agonist points to a story describing how retroactivity is built in to the easing of MTBE restrictions that's part of the energy bill that Congress is working on.

On the surface of it, this retroactive legislation sounds like a dirty trick. After all, we wouldn't punish someone for doing something that was outlawed after they did it, because at the time they were essentially told by the government that that act was OK. However, this principle is not symmetrical. Most laws -- and pollution standards fall into this category -- have a sort of universality to them, coming with the presumption that the thing they outlaw is a bad thing in general, not just a bad thing after the law is passed. To pass a law lowering MTBE standards, for example, implies that in the government's judgement there was, from a public health standpoint, never anything wrong with pollution in the newly legalized range. If the old law was unjust, why perpetuate that injustice by taking violators to court? The one reason I can think of that the violators should still be prosecuted is the idea that, independent of a law's content, obedience to the law is a good thing, and thus people should be punished for willfully breaking the law even if the law is stupid. Certainly many corporations could use a lesson in the importance of following the law. Nevertheless, I think (not being a lawyer, all I have is an opinion) the "no harm, no foul" criterion can reasonably be said to outweigh the "respect for the law" one.

This is not to say these bits of retroactive legislation are not bad. But declining to prosecute people who violated the old standard when it was in effect is no worse than declining to prosecute people who would have violated the old standard if it had remained in effect in the future. Retroactive legislation is bad because the new rules are wrong and because not upholding the old standard hurts the environment, not because it's a sneaky and illegitimate trick.

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